DUI News: Are Forced Blood Draws Unconstitutional?

The United States Supreme Court, in Schmerber v. California, issued its opinion in 1966 that a person suspected of driving under the influence (DUI) may have his or her blood drawn against their consent without violating any Constitutional rights. Since then, law enforcement routinely has forced a blood draw on a suspected drunk driver throughout the U.S. The United States Supreme Court, in September 2012, granted review to revisit the issue of whether a person suspected of drunk driving may have blood drawn against their will. Is a forced blood draw unconstitutional on a suspected drunk driver? The United States Supreme Court (SCOTUS) is expected to answer the question sometime in the first half of 2013.

In 1966, the United States Supreme Court issued its landmark opinion in DUI law permitting, in certain circumstances, the forced blood draw of a suspected drunk driver against his will without a warrant. In Schmerber, the defendant was involved in a vehicle collision and was transported to the hospital for medical reasons. The officer suspected that the defendant may have been DUI, placed him under arrest, and attempted to obtain a blood sample. The defendant refused to consent to a blood draw. Over his

Is forcing someone to submit to a blood toxicology test constitutional?

objection, the officer directed medical personnel to perform a blood draw. The subsequent blood analysis indicated that his alcohol level was above the legal limit.

The Supreme Court opined that taking blood normally requires a search warrant, but, under the circumstances – an exception to the requirement of a warrant was found. The Court reasoned that the dissipation of the alcohol in the bloodstream coupled with the time consumption involved in investigating the traffic collision provided the circumstances to except the forced blood draw from the warrant requirement.

The case of Missouri v. McNeely will soon be heard by the U.S. Supreme Court. In McNeely, the suspect was pulled over on a routine traffic stop. The officer immediately suspected that the suspect may be under the influence and requested that he step out of the vehicle and perform field sobriety tests (FSTs). McNeely performed poorly and the officer then requested that the suspect submit to a breath test, which was refused, and then a blood test, which was also refused. The officer then transported the suspect to a medical facility where his blood was forcefully drawn.

In striking down the forced blood draw in McNeely, the Missouri Supreme Court distinguished Schmerber reasoning that Schmerber presented additional circumstances that were not present in the McNeely case – namely that there was no collision and no necessity for medical treatment of the suspect. Rather the sole circumstance was the fear that blood alcohol content (BAC) would dissipate from the bloodstream.

State Courts Divided on Forced Blood Draws

Missouri is not the first state to tackle the issue of whether a DUI investigation without unusual circumstances permits law enforcement from taking a blood draw. States such as Wisconsin, Oregon and Minnesota have allowed their police officers to take the blood draw forcefully. States such as Utah and Iowa have ruled against allowing forced blood draws absent additional circumstances. The U.S. Supreme Court’s decision will finalize the rule of law on this issue once and for all.

Refusals Still Have Severe Consequences

Anyone believing that it may be better to refuse a chemical test rather than allow the police to obtain evidence of your blood alcohol content (BAC) should be aware of the consequences. First, you may still be convicted of drunk driving even without a chemical test. Second, a refusal can be used against you as “consciousness of guilt” – meaning a jury can infer that your refusal to take a chemical test is because you know you are guilty. Third, under the Implied Consent Laws of your state, you face a hard suspension of your driver’s license. Many states impose a one year suspension or greater. Think twice before refusing.